Lawsuit filed to seize Dillsboro dam

Jackson County has formally filed a lawsuit against Duke Energy to seize the Dillsboro Dam and surrounding river shore, using eminent domain to create a public park and in the process save the dam from being torn down.

The county is also seeking a preliminary injunction against Duke to keep the utility from demolishing, altering or removing any part of the dam or nearby powerhouse.

“Duke intends to immediately begin preparing the Dillsboro Dam and Powerhouse for demolition and removal,” the lawsuit states. But any forays toward removal would cause “irreparable harm as these historic structures cannot be replaced.”

Jackson County wants to transform the dam and surrounding shoreline of the Tuckasegee into a river park and promenade, replete with walking paths, benches, fishing areas and river access. The dam and powerhouse are intended as focal points in the county’s Dillsboro Heritage Park Plan, and, therefore, must be protected through a preliminary injunction against Duke, Jackson pleads.

The injunction also seeks to allow county officials to come onto Duke’s property. Duke had threatened the county with trespassing charges if it attempted to do so, keeping the county from surveying the property it plans to seize or conduct an appraisal.

The lawsuit claims the county is within its rights to seize the property under a state statue allowing for eminent domain for the purpose of creating, enlarging or improving a park or other recreational facility.

Duke has previously countered that condemnation would interfere with an order from the Federal Energy Regulatory Commission to tear down the dam. Jackson claims that the “order” to tear down the dam is being misrepresented by Duke and that FERC merely granted Duke permission to tear it down. Once Duke no longer owns the dam, the FERC ruling will become moot, Jackson argues.

Jackson points out in the suit that the hydropower operation at the Dillsboro dam has been offline for five years, and therefore isn’t a core part of Duke’s business operation. In addition, Duke no longer has a federal license to operate the dam, having relinquished it in anticipation of demolition.

The county would be required to compensate Duke for the monetary value of the dam if condemnation is successful. At the time of filing the condemnation suit, the county was supposed to deposit the money upfront in an escrow account with the courts.

However, Jackson County only deposited $1. The county argues that by seizing the dam, Duke has been saved the trouble and expense of tearing it down, an undertaking that would have cost more than $1 million. That savings should more than suffice as the monetary compensation Jackson would otherwise owe Duke, the suit argues.